Texas May Still Be the Wild West, But Its Social Media Shouldn’t Be

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The Texas legislature passed and Governor Greg Abbott recently signed into law H.B. 20, which he described as “safeguarding the freedom of speech by protecting social-media and email users from being censored based on the user’s expressed viewpoints.”

“No one will really understand politics,” economist Thomas Sowell once said, “until they understand that politicians are not trying to solve our problems. They are trying to solve their own problems—of which getting elected and reelected are No. 1 and No. 2.” Texas’ latest attempt to regulate content moderation on online platforms, like Facebook, Twitter and YouTube, is a great example.

The regulations in the bill are unworkable and the premise is unconstitutional, but voter outrage about online “censorship” is real enough for politicians to mine it for contributions, attention, and votes.  The law gives the state attorney general and Texas residents banned from Facebook, Twitter, and YouTube the ability to sue.

Texas’ bill assumes the platforms are common carriers, despite any official classification of them as such. Traditionally, common carriers are private companies or public utilities, like phone or cable companies, that transport goods with no differentiation and are not allowed to refuse service to anyone willing to pay. But online platforms work very differently from the “dumb pipes” industries conventionally subjected to common carrier status.

Online platforms curate the user experience as a competitive advantage. Facebook and Alphabet, YouTube’s parent company, spend billions of dollars on research and development to improve their products and innovate new services, many of which involve moderating content on their sites. None of these companies could be confused for edge provider equivalents of “dumb pipes.” If they were all the same passive conduits that merely displayed user’s posts chronologically, why would any user have a preference among Facebook, Instagram, Twitter, YouTube, TikTok, Parler or others?

All the prioritizing, hiding, and removing of content these platforms do is to improve the online experience. It’s also part of why Texas’ ‘no viewpoint discrimination’ provision makes so little sense. The bill seeks to prevent big platforms from blocking, banning, removing, de-platforming, demonetizing, de-boosting, restricting, denying equal access or visibility to, or otherwise discriminating third-party content based on its author’s “viewpoint.” But the curation of user content is intrinsic to what comprises the companies’ product; Facebook, Twitter, YouTube and others largely distinguish themselves from the other by content moderation in an effort to show users what they most want to see.

The real-world implications of this bill are evident in the amendments offered to it on the legislative floor. Amendments sought to allow platforms to remove holocaust denial, terrorism, and medical misinformation. Those failed, but they foretell the kind of content most users would rather not see and most social media platforms remove, flag, hide, or refuse to promote. An Internet with no content moderation would quickly become filled with spam, pornography, and violence.

Beyond the practical problems, this bill faces serious legal hurdles. The Internet surely qualifies as interstate commerce and states are not allowed to regulate that in a way that creates an undue burden. Asking global companies to act differently toward their users in Texas may very well cross that line. The federal government has already preempted this sort of state regulation of content moderation with the 1996 Telecommunications Decency Act and its now controversial liability shield, Section 230.

The Texas law is being touted by its supporters as a free speech protection for social media users, but just as someone has no right to throw a political fundraiser in a neighbor’s backyard without the neighbor’s permission, social media users have no right to speak on the private property of social media platforms. The bill actually violates the First Amendment rights of social media platforms that, no matter how big or public-facing, remain private property, with their right to refuse to carry speech intact. Texas cannot wave away constitutional prohibitions on compelled speech. The recent thwarting of a similar Florida law in court, likely predicts the fate of Texas’ bill.

The frustration of conservative voters feeling discriminated against online is real, but this law is a cure worse than the disease. Better to let the market innovate new alternatives and leave both platforms’ and users’ First Amendment rights intact. Even in Texas.